Thought Leader: Bruce Monnington on Agricultural Law
Agricultural Law can cover a variety of subjects, from property, tenancy and estate, to insurance, financing and land rights. Further with the advent of modern technologies, agricultural law now also encompasses an array of legal issues, which in conjunction with rural culture, especially require the assistance of expert lawyers by the day.
On this matter, Lawyer Monthly has heard from Bruce Monnington, practising barrister at UK-based Fenners Chambers. Bruce gives particular insight into the typical kinds of legal matters that arise in the agricultural sector, the most impacting changes that are affecting the agricultural landscape, and about the future prospects for this industry’s legal challenges.
What are the most common types of dispute you deal with related to the agricultural and rural industry?
Tenancy matters:
• disputed notices to quit under the 1986 Act, especially Case B (relating to recovery of possession for development;
• succession tenancies under the 1986 Act;
• drafting special clauses for farm business tenancies, e.g. break clauses for development, replication of the succession provisions of the 1986 Act;
• residential farm tenancies: agricultural protected tenancies and assured agricultural occupants (many old farm cottages are very valuable now, whether for holiday lets or as second homes).
Family disputes:
• claims in estoppel/constructive trust in relation to promises or expectations that a farm will be left to a given individual;
• farm partnership disputes.
Disputes arising out of ‘changed use’ of land (such as diversification), for instance:
• whether a right of way to a farm can be used for non-agricultural activities on the farm, such as a livery business, access to a campsite, or even selling off a farm cottage to a private individual;
• I was Counsel in Gainsborough Field v Hyde [2005] EWHC 2229 which considered the meaning of “agriculture” for the purposes of an express right of way, where the farmer wanted to use the land for equine purposes;
• similarly with restrictive covenants for the use of land for agricultural purposes only) and user covenants in tenancies;
• drafting overage agreements, and trying to interpret one’s other people have drafted!
Valuation issues on death:
• availability of agricultural property relief;
• effect of third party rights on valuation, e.g. whether tenancy rights exist or the effect of an estoppel claim on value.
Issues over public rights of way and town/village green applications:
• I have done several public inquiries over the existence of public rights of way, (e.g. on basis of inclosure awards form 19th century) and the existence of town and village greens (TVGs) which can thwart development.
Have there been any recent changes to the Agricultural Holdings Act 1986 and Agricultural Tenancies Act 1995 that have affected your work? If so, please tell me about them.
The real milestone has been the Agricultural Tenancies Act 1995, which re-wrote the landlord and tenant relationship for new tenancies.
Since then, the Regulatory Reform (Agricultural Tenancies) (England and Wales) Order 2006 ironed out some wrinkles in the 1986 Act and the 1995 Act. The most important were:
• enabling an applicant for a 1986 Act tenancy succession to rely on non-agricultural work in satisfying the various tests under the Act for succession (previously, any work in connection with diversification did not count);
• clarifying when a change in the land holding comprising an agricultural holding triggers an FBT.
How challenging is the agricultural sector to work in? How do you overcome these on a daily basis?
The agricultural sector is challenging to work in, engaging a unique set of factors:
• In most respects, agriculture has its own statutory code, and is excluded from mainstream legislation.
• Agriculture contains some of the most complex tests, e.g. agriculture residential tenancies are very complex, as are the conditions for a succession tenancy under the 1986 Act.
• The businesses are increasingly complex and wide ranging, including farming, letting buildings for non-agricultural use, operating diversified.
• Some very significant relations are conducted on a very informal basis. For instance, swapping land, borrowing machinery, allowing occasional use of land by third party, and of course contract farming where absolutely key farming functions are undertaken on little more than a trust basis.
• Many areas of law operate on the basis of the recent past, with documents going back only a few years, whether due to their relevance or perhaps because solicitors only retain files for 7 years. Farmers hoard their records, and come up with letters/documents going back decades. This can be immensely helpful, but also you have to be wary, because the other side can sometimes come up with some old letter which flatly contradicts the position of your own client. You certainly become an expert on old type-faces!
• So I like to meet the client, preferably on their own patch. The client starts pulling out old documents, you can see and understand the issues (sometimes there is something startling obvious and crucially important, that hasn’t been mentioned, e.g. a new barn that has been erected). There is nothing like turning up at the farm, and negotiating a cranky old staircase in a converted outbuilding which leads to the farm office in what may well be a multi-million pound business!
As a thought leader, how have you helped visibly evolve the field of agricultural law?
Through my input and contribution to reform in key areas:
• The passage of the Agricultural Tenancies Act 1995 through Parliament;
• Land registration reform:at the CLA my input was sought on the reform of the law of adverse possession and on the compulsory registration of various 3rd party rights (express easements, chancel repairs). These formed key parts of the eventual Land Registration Act 2002;
• Countryside and Rights of Way Act 2000 –
-Key player in process leading up to the 2000 Act;
-Right to roam introduced, but with significant restrictions and protection for landowners e.g. special restrictions on use by the public during the lambing season;
-Part II of the Act introduced some important reforms to the law of public rights of way, including a rationalisation of the diversion of public footpaths, such as where this helps develop or protect a rural business.
I have also sat on the influential TRIG (Tenancy Reform Industry Group) during key phases of its work both when I was at the CLA and now for the Council of the ALA. This is a stakeholders group, which endeavours to build a consensus on key areas of tenancy law in the agricultural sector that need reform/ change.
Whilst at the CLA and since being back in private practice, I have lectured and written articles on the development of thinking in all of the above areas, on legislative change and the implications thereof. This has included for CLT, Farm Law, and the ALA Bulletin. e.g. easements in the context of diversification. I am also co-author of “Essential Law for Landowners and Farmers” and editor of various agriculture-related titles in the Encyclopaedia of Forms and Precedents.
Do you see the need for any new regulatory changes within this sector? If so, please explain.
I would say no. The whole philosophy of the Agricultural Tenancies Act 1995 was to give the parties freedom of contract, subject to a few basic safeguards. In light of this, there is no need for regulatory change as such – what is needed is quality advice tailored to the parties’ respective interests in each given situation. No longer is it an “off the peg” agreement propped up by a heavy statutory framework; now it is “bespoke.”
The one area in which there will almost certainly be change in the foreseeable future is the Single Farm Payment regime in light of the Brexit referendum. Assuming (as now seems almost certain) the UK leaves the EU, our government will have to introduce its own scheme of agricultural support.
Whilst the present indications from Treasury are that the current level of financial support will be maintained, what is unknown is the legal framework within which that support will be delivered. Inevitably there will be changes in the nature of the property right through which support is made, and a careful eye will need to be kept on developments. As Counsel in Pease v McMillan [2009] EWCA Civ 258, one of the very few cases on the ownership of the Single Farm Payment, I am well placed to advise on this, and I have already been approached by a large estate to draw up fresh terms for its standard tenancy agreement to cater (as far as is possible) for future changes in the system
